U.S. v. Sabetta

• Decision Date: 24 June 2004
• Docket Number: No. 03-1506.,03-1506.
• Citation: 373 F.3d 75
• Parties: UNITED STATES of America, Appellee, v. Anthony SABETTA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

373 F.3d 75

UNITED STATES of America, Appellee, v. Anthony SABETTA, Defendant, Appellant.

No. 03-1506.

United States Court of Appeals, First Circuit.

Heard February 4, 2004.

Decided June 24, 2004.

COPYRIGHT MATERIAL OMITTED

Jane Elizabeth Lee, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, Assistant United States Attorney and Craig N. Moore, Acting United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

A jury convicted defendant-appellant Anthony Sabetta of violating 18 U.S.C. §§ 922(g) and 924(e), which prohibit a felon from possessing a firearm. The district court sentenced him to 262 months in prison and a five year term of supervised release. Sabetta appeals, claiming that the district court erred by: (1) responding to a jury question without first showing or reading the jury note to counsel; (2) responding to the jury's question by using an example involving the facts of the case; (3) failing to define the term "knowingly"; and (4) admitting certain testimony. After careful review, we affirm.

I. Background

In the early morning on September 1, 2000, Sabetta, Daniel Andino, and Sabetta's girlfriend were going out to eat. While leaving his Cranston, Rhode Island home, Sabetta encountered James Corio and Christopher Colardo. A fight ensued in the front yard. Neighbors called the police and reported the disturbance. The police arrived to investigate. By the time they arrived, however, Sabetta was no longer at the scene.

In the afternoon of September 1, Andino was attacked by two men in connection with a separate dispute. Andino called Sabetta and told him about the altercation. He asked Sabetta if Sabetta would drive Andino's car and help Andino look for his attackers. Sabetta agreed and drove Andino's car in search of Andino's attackers.

Also in the afternoon of September 1, Colardo's mother and sister went to the police station to inform the police that Sabetta had possessed a gun during the early morning fight. Neither Colardo's mother nor any of the other witnesses interviewed by the police earlier that day had mentioned a gun. Colardo's mother gave the police the make, model, and license number of Andino's car.

In the evening of September 1, while Sabetta and Andino were searching for Andino's attackers, a Cranston police officer, responding to Colardo's report, stopped Andino's car, which Sabetta was driving. The police searched the car and found a gun in a hidden compartment behind the glove compartment. Sabetta and Andino were arrested.

Sabetta was charged in federal district court with being a felon in possession of a firearm.¹ On April 6, 2001, Sabetta was convicted and sentenced. Sabetta appealed his conviction, and this court reversed and remanded for a new trial after the government conceded that some of the prosecutor's closing remarks were improper and prejudicial.

On January 7, 2003, Sabetta's second trial commenced. Sabetta was again convicted and sentenced. He appeals the conviction.

II. Analysis

A. The jury's note

On January 13, 2003, after five days of trial, the jury retired to deliberate. After deliberating for three hours, the trial judge was informed that the jury had two questions. The trial judge brought the jury back into the courtroom. With all parties present, the trial judge learned, for the first time, that the jury had reduced its questions to writing. The judge read the note and stated: "Your first question is, what is the definition of possession ... [and][t]he second question is, does being in a vehicle that contains a concealed firearm constitute possession?" Without giving counsel an opportunity to discuss possible answers to the jury questions, the judge answered them.

Immediately after the jury left the courtroom to deliberate further, the judge asked the lawyers if "anyone want[s] to put anything on the record?" Defense counsel stated he wanted to "think for a second" and then stated that he had no objection. Forty minutes later, the jury found the defendant guilty.

In this circuit, the

preferred practice for handling a jury message should include these steps: (1) the jury's communique should be reduced to writing; (2) the note should be marked as an exhibit for identification; (3) it should be shown, or read fully, to counsel; and (4) counsel should be given an opportunity to suggest an appropriate rejoinder. If the note requires a response ore tenus, the jury should then be recalled, the note read into the record or summarized by the court, the supplemental instructions given, and counsel afforded an opportunity to object at side-bar.

United States v. Maraj, 947 F.2d 520, 525 (1st Cir.1991) (footnote omitted); see also Shields v. United States, 273 U.S. 583, 588, 47 S.Ct. 478, 71 L.Ed. 787 (1927) (holding that "[w]here a jury has retired to consider of its verdict, and supplementary instructions are required ... they ought to be given either in the presence of counsel or after notice and an opportunity to be present"). In the case before us, the jury note was not marked as an exhibit, and counsel was not given an opportunity to suggest an appropriate rejoinder before the trial judge answered the jury's questions.

Despite the supplemental instructions being given in a manner contrary to circuit practice, a trial court's error will not require reversal if the error is harmless. See United States v. Parent, 954 F.2d 23, 25 (1st Cir.1992) (stating that "a trial court's error in failing seasonably to inform counsel about a jury note does not require reversal if the error is benign"). This circuit has not yet taken a position on which harmless error standard applies when a trial court fails to disclose or discuss a note from a deliberating jury. See Parent at 25, n. 5; Maraj, 947 F.2d at 526. Either the stricter standard, asking whether the error was harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or the more lenient standard, asking whether the error had substantial and injurious effect or influence vis-a-vis the judgment, see Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), applies. Yet again, we need not decide which standard applies as the error in this case was harmless under either standard.

The trial judge's failure to allow counsel to suggest an appropriate rejoinder was harmless beyond a reasonable doubt because counsel was present when the jury's questions were read and answered. Cf. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (harmful error for court to respond to a jury note without informing counsel of the note); Parent, 954 F.2d at 27 (same); United States v. Neff, 10 F.3d 1321, 1322 (7th Cir.1993) (same). Defense counsel thus had the opportunity to object or to request a side-bar had he believed the judge's answers to be incorrect or unfairly prejudicial. See Maraj, 947 F.2d at 525 (stating that "[i]f the note requires a response ore tenus... the supplemental instructions [should be] given, and counsel afforded an opportunity to object at side-bar"). Unlike cases where the defendant was "kept in the dark" regarding the existence or content of the jury's note, in this case Sabetta's counsel had the ability to object before the jury's note was read, after the jury's note was read, during the court's rejoinder, or after the court's rejoinder. Compare Parent, 954 F.2d at 24 (counsel was "kept in the dark" regarding jury's note and judge's reply). Being present when the jury's note was first read and answered also afforded Sabetta's counsel the opportunity to "prime the pump of persuasion," had he been inclined to do so. See Parent, 954 F.2d at 24 (stating that not having the opportunity to "prime the pump of persuasion" can be an injury).

Although it may be possible for a harmful error to occur even when counsel has an opportunity to object, in this case it is clear that there was no such error. Once the jury retired, the trial judge asked if "anyone want[s] to put anything on the record." After taking a moment to think about it, defense counsel stated he had no objection to the instruction.

As a result, we hold that the district court committed an error by not giving Sabetta an opportunity to suggest an appropriate rejoinder before the trial judge answered the jury's questions, but such an error was harmless beyond a reasonable doubt. See Maraj, 947 F.2d at 526 (holding that an error was harmless beyond a reasonable doubt because the "judge's comments were neither unduly coercive nor arguably unsatisfactory. Moreover, had the full note been contemporaneously disclosed, there was nothing more that defense counsel could appropriately have done.").

B. The judge's rejoinder

Sabetta contends that the trial judge's answer to the second question in the jury note invaded the province of the jury as the finder of fact and thus violated his Sixth Amendment right to a trial by jury. The second question posed by the jury was "[D]oes being in a vehicle that contains a concealed firearm constitute possession?" The judge responded:

Now I discussed constructive possession with you, and I think that comes up as a result of your second question here.... [T]here's several requirements for constructive possession. If, for example, someone is in a vehicle and knows, knows that a gun is in the glove compartment, and has the intention to exercise dominion and control over that item, that's constructive possession. So that illustrates the difference between constructive possession and actual possession.

Because Sabetta's counsel did not object to this instruction at trial, we review for plain error. See United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir.2001). "The plain error hurdle, high in all events, nowhere looms larger than in the context of alleged instructional...